For testators who want to discourage estate litigation over their will, a no-contest clause – also known as a non-terrorem clause – can be an effective drafting tool. These clauses typically threaten to disinherit a beneficiary named in a will if they challenge the will’s validity. However, it appears that if a no-contest clause is drafted more broadly, it can be used to discourage a wider variety of estate litigation, and not just will challenges. For example, earlier this year in Franklin Estate (Re), 2026 NLSC 7, the Newfoundland and Labrador Supreme Court held that a beneficiary could be disinherited under a broadly worded no-contest clause for bringing an application to remove the estate’s executor.
Background
The testator in Franklin died in 2019, leaving behind a will which bequeathed testamentary gifts of real and personal property to each of his three children. The will also directed the residue of the estate to be divided equally amongst them.
Nina, one of the testator’s daughters, was named the executor of the testator’s estate in his will, and was granted broad discretionary authority for the purpose of administering the estate. The will even included a clause which protected the exercise of her discretion, barring any action to compel Nina to exercise her discretion and barring any claim against Nina with respect to the reasonable exercise of her discretion.
The will also included “a classic ‘no-contest’ clause” under the heading “Litigious Beneficiaries” which stated:
“If any person who may be entitled to any benefit under my Will or the spouse of that person, commences any litigation in connection with any of the provisions of my Will, other than for the necessary judicial interpretation or for the direction of the court in the course of administration, all benefits to which that person would have been entitled shall cease and I revoke all such benefits. I direct that these benefits so revoked shall fall into and form part of the residue of my estate to be distributed as if the person had predeceased me and left no issue surviving me.”
Nina applied to enforce the “Litigious Beneficiaries” clause after her sister, Gemma, brought a variety of court applications regarding the administration of their father’s estate, including an application seeking the removal of Nina as executor. When the application was made, Gemma had still not received her share of their father’s estate, and claimed that Nina’s interim accounting for the estate was incomplete and reflected mismanagement and self-dealing.
Nina argued that the application to remove her as executor was “not a neutral request for directions” but instead “an adversarial attack on the Testator’s chosen fiduciary and a direct challenge to the Will’s administrative structure.”
In response, Gemma argued that the application to remove Nina as executor did not trigger the no-contest clause, as the application was not constituted “in connection with any of the provisions” of the will. Rather, she claimed that she was only seeking court supervision to ensure that the estate was properly administered.
No-Contest Clause Triggered by Litigation Related to Estate Administration
Justice Handrigan granted Nina’s application, determining that the “Litigious Beneficiaries” clause was a valid no-contest clause and that Gemma’s application to remove Nina as executor triggered it.
First, the court recognized that, in its jurisdiction, three criteria must be met before a no-contest clause may be declared void:
- 1. The legacy must concern personal property or blended real and personal property.
- 2. The condition must forbid the beneficiary from disputing the will.
- 3. The clause must be an “idle threat,” in that there is no real consequence if the beneficiary undertakes that which the clause forbids.
In this case, the “Litigious Beneficiaries” clause was valid. The affected gifts included real and personal property, and the no-contest clause included a gift-over, meaning it was not merely an idle threat. It also did not forbid all estate litigation. Rather, it carved out two exceptions, permitting applications for judicial interpretation of the will, and applications for court directions in the course of estate administration.
Gemma’s application to remove Nina as executor was subject to the “Litigious Beneficiaries” clause, as the application constituted litigation in connection with the provisions of the testator’s will and did not fall into either of the permitted exceptions.
Justice Handrigan noted that, in light of the exceptionally broad discretion granted to Nina to administer the estate, the application posed a direct challenge to the structure established by the will for estate administration. In other words, the application to remove Nina was “more than a desultory act” – rather, it “[challenged] the Will fundamentally.”
In light of the applications brought by Gemma, the court held that she forfeited her share of her father’s estate, including a gift of real property and her share of the residue.
Key Takeaways
The court’s decision in Franklin is exceptional in holding that estate litigation pertaining to estate administration, including an application to remove the executor of an estate, can successfully trigger a no-contest clause.
The court’s decision ought to serve as a warning to estate litigators to proceed with caution when a will includes a broadly worded no-contest clause. For example, it may not be prudent to apply to remove the executor of the estate if they were appointed by the testator’s will. If the application fails, there is a risk that the applicant may lose their inheritance, particularly if the application is interpreted as an attack on the will’s structure.
For will drafters, this case is also noteworthy, as it demonstrates that a no-contest clause can be used not only to discourage will challenges, but also to discourage litigation surrounding estate administration. To successfully discourage such broader litigation, however, the will may also need to grant the executor considerable discretion and authority with respect to estate administration.
Thank you for reading, and have a great day!
Suzana.